One of the most shocking revelations in the DOJ’s recently-released report on its lawyers who supported Bush-era torture policy is John Yoo’s admission that he believes the President of the United States could unilaterally order “a village…to be massacred.”

Today, Yoo doubled-down on this statement in an interview with San Francisco radio station KQED. After the host asked him if he stands by his prior support of Presidential massacres, Yoo raised the stakes to endorse the President’s unilateral authority to use nuclear weapons: 

Look at the bombing of Hiroshima and Nagasaki. … Could Congress tell President Truman that he couldn’t use a nuclear bomb in Japan, even though Truman thought in good faith he was saving millions of Americans and Japanese lives? … My only point is that the government places those decisions in the President, and if the Congress doesn’t like it they can cut off funds for it or they can impeach him.

Listen here:

First of all, Yoo’s claim that Congress could cut off funds for a nuclear attack or impeach the President after he makes the decision to launch nuclear weapons does little to prevent a nuclear attack. Even assuming that a supermajority of senators supported taking swift action against a rogue President, the fact that Congress subsequently cut of funding for nuclear launches or removed the President from office would be little comfort to the tens of thousands of people already killed in the attack. Yoo’s solution amounts to shutting the barn door long after the horse has fled.

More importantly, Yoo misrepresents the law. As far back as 1804, a unanimous Supreme Court held in Little v. Barreme that Congress has sweeping authority to limit the President’s actions in wartime. That case involved an Act of Congress authorizing vessels to seize cargo ships bound for French ports. After the President also authorized vessels to seize ships headed away from French ports, the Supreme Court held this authorization unconstitutional on the grounds that Congress’ decision to allow one kind of seizure implicitly forbade other kinds of seizure. More recently, in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court held that the President does not have the power to unilaterally set military policy (in those cases with respect to detention); he must comply with statutory limits on his power. Taken together, these and other cases unquestionably establish that Congress has the power to tell the President “no,” and the President must listen.

John Yoo is a moral vacuum, but he is also a constitutional law professor at one of the nation’s top law schools and a former Supreme Court clerk. It is simply impossible that Yoo is not aware of Little, Hamdi and Hamdan, or that he does not understand what they say. So when John Yoo claims that the President is not bound by Congressional limits, he is not simply ignorant or misunderstanding the law. He is lying.

Justice Department officials John Yoo and Jay Bybee were two of the main architects of the Bush administration’s torture program. As Bybee’s deputy, Yoo “was the author of much of the legal rationale for using waterboarding and other severe interrogation techniques.” He argued that interrogators who harm a prisoner would be protected “national and international version of the right to self-defense,” and illegal conduct must “shock the conscience.” Bybee headed the DOJ’s Office of Legal Counsel and signed off on the infamous 2002 torture memo. Newsweek now reports that a senior DOJ official has essentially cleared the two men of misconduct in an upcoming office of Professional Responsibility report:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors — Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor — violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) The shift is significant: the original finding would have triggered a referral to state bar associations for potential disciplinary action — which, in Bybee’s case, could have led to an impeachment inquiry.

A DOJ official said that Margolis “acted without input” from Attorney General Eric Holder. Emptywheel has more.

The New York Times reports that in 2002, Vice President Cheney and his administration allies urged President Bush to deploy American troops into the suburbs of Buffalo to apprehend a group of terrorist suspects (the “Lackawanna Six”) and declare them enemy combatants. The Times notes:

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

Cheney cited a DoJ memo co-authored by John Yoo which claimed that “the president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.” Siding with Condoleezza Rice, FBI Director Robert Mueller, and others, Bush rejected Cheney’s advice and “ended up ordering the F.B.I. to make the arrests.”

Last week, the Inspectors General of five separate intelligence agencies released a congressionally-mandated report on the Bush administration’s post-9/11 surveillance programs. The report focuses much of its criticism on John Yoo, a former deputy assistant attorney general in the Office of Legal Counsel, who wrote “legal memos undergirding the policy.”

In the Wall Street Journal today, Yoo responded to the report, claiming that the inspectors general are ignoring history and are simply “responding to the media-stoked politics of recrimination.” But in his attack on the report, Yoo neither responded to the specific criticisms of his legal reasoning nor mentioned that he refused to cooperate with the investigation.

Instead, Yoo persisted in pushing the flaws in his legal argument, such as the claim that the Foreign Intelligence Surveillance Act did not take war into consideration:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. … In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency.

But the IG report stated:

Yoo wrote that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid such a reading.”

Yoo’s analysis of this point would later raise serious concerns for other officials in OLC and the Office of the Deputy Attorney General (ODAG) in late 2003 and early 2004. Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 U.S.C. § 1811. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance during wartime.

In his op-ed, Yoo also argued that “the 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar,” but that it doesn’t apply in the case of Bush’s warrantless wiretapping program. Yoo never mentioned, however, that he neglected to make that argument in his legal memos supporting the program:

Yoo’s legal memoranda omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. Justice Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions on the legality of the PSP.

Finally, though he mentioned that IG report covers “‘other’ intelligence measures” that he signed off on, Yoo never addressed the charge that his “discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” which led former Attorney General John Ashcroft to conclude that he had “been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.”

The New York Times reports that a federal judge in California has ruled that former Bush administration lawyer John Yoo will have to testify in court about accusations that his work led to the torture of a detainee:

The government had asked Judge Jeffrey S. White of Federal District Court in San Francisco to dismiss the case filed by Jose Padilla, an American citizen who spent more than three years in a military brig as an enemy combatant. Judge White denied most elements of Mr. Yoo’s motion and quoted a passage from the Federalist Papers that in times of war, nations, to be more safe, “at length become willing to run the risk of being less free.”

Constitutional law professor Jonathan Turley has said that Yoo’s memos “provide the very definition of tyranny.”

The Philadelphia Inquirer already has a long line-up of conservative columnists, including Michael Smerconish and Rick Santorum (who reportedly makes $1,750 per column). Attytood’s Will Bunch reveals that the Inquirer now has one more: torture architect John Yoo. The Inquirer hired Yoo in late 2008, but according to Bunch, didn’t give him a byline as an “Inquirer columnist” until Sunday. Bunch wrote to Inquirer editorial page editor Harold Jackson and received this response:

John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won’t discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo’s actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He’s a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary.

Bunch responds: “The higher calling for an American newspaper should be promoting and maintaining our sometimes fragile democracy, the very thing that Yoo and his band of torture advocates very nearly shredded in a few short years. Quite simply, by handing Yoo a regularly scheduled platform for his viewpoint, the Inquirer is telling its readers that Yoo’s ideas — especially that torture is not a crime against the very essence of America — are acceptable.”

A Spanish court “has agreed to consider opening a criminal case against six former Bush administration officials…over allegations they gave legal cover for torture at Guantanamo Bay.” The officials include former attorney general Alberto Gonzales, former undersecretary of defense for policy Douglas Feith, former Cheney chief of staff David Addington, Justice Department officials John Yoo and Jay S. Bybee, and Pentagon lawyer William Haynes. The AP has more details on the case:

Spanish law allows courts to reach beyond national borders in cases of torture or war crimes under a doctrine of universal justice, though the government has recently said it hopes to limit the scope of the legal process. [...]

Human rights lawyers brought the case before leading anti-terror judge Baltasar Garzon, who agreed to send it on to prosecutors to decide whether it had merit, Gonzalo Boye, one of the lawyers who brought the charges, told The Associated Press. [...]

The judge’s decision to send the case against the American officials to prosecutors means it will proceed, at least for now. Prosecutors must now decide whether to recommend a full-blown investigation, though Garzon is not bound by their decision.

Journalist Mark Danner reports today that he has acquired a once “confidential” 2006 Red Cross investigation on U.S. terror detentions. The report details “suffocation by water,” “prolonged stress standing,” “beatings by use of a collar,” and “confinement in a box.” Danner notes that senior Bush officials were well aware of the techniques being used. Some accounts from detainees:

– “I was taken out of my cell and one of the interrogators wrapped a towel around my neck; they then used it to swing me around and smash me repeatedly against the hard walls of the room.”

– “Both my feet became very swollen after one month of almost continual standing.”

– “A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall.

The report’s conclusion reads: “The allegations of ill treatment of the detainees indicate that, in many cases, the ill treatment to which they were subjected while held in the C.I.A. program, either singly or in combination, constituted torture.” Previously, the Bush administration had attempted to conceal harsh treatment from the Red Cross.